civil action to be brought by a claimant or beneficiary "to
recover benefits due to him under the terms of his plan, to
enforce his rights under the terms of the plan, or to clarify his
rights to future benefits under the terms of the plan"; and §
502(a)(3), 29 U.S.C. § 1132(a)(3), which provides a right of
action "by a participant, beneficiary, or fiduciary (A) to enjoin
any act or practice which violates any provision of this
subchapter or the terms of the plan, or (B) to obtain other
appropriate equitable relief (i) to redress such violations or
(ii) to enforce any provisions of this subchapter or the terms of
Defendants do not seek dismissal of the § 502(a)(1)(B) claim
against the Plan at this time, but they contend that it is not
properly asserted against Akzo or the Committee. With respect to
that issue, the Second Circuit has stated that "[i]n a recovery
of benefits claim [under 29 U.S.C. § 1132(a)(1)(B)], only the
plan and the administrators and trustees of the plan in their
capacity as such may be held liable." Crocco v. Xerox Corp.,
137 F.3d 105, 107 (2d Cir. 1998) (quoting Leonelli v. Pennwalt
Corp., 887 F.2d 1195, 1199 (2d Cir. 1989)); accord Walsh v.
Eastman Kodak Co., 53 F. Supp.2d 569, 574 (W.D.N.Y. 1999);
MacMillan v. Provident Mut. Life Ins. Co. of Philadelphia,
32 F. Supp.2d 600, 604 (W.D.N.Y. 1999); Dittman v. Dyno Nobel,
Inc., No. 97-CV-1724, 1998 WL 865603 *6 (N.D.N.Y. Nov.24, 1998);
Brannon v. Tarlov, 986 F. Supp. 146, 152 (E.D.N.Y. 1997),
aff'd, 164 F.3d 617 (2d Cir. 1998), cert. denied, ___ U.S.
___, 120 S.Ct. 99, 145 L.Ed.2d 84 (1999); Greater Blouse, Skirt,
& Undergarment Ass'n, Inc. v. Morris, No. 93-1257, 1996 WL
325595 *4 (S.D.N.Y. June 12, 1996).
This claim must therefore be dismissed against Akzo. The
Committee, however, is alleged to be the administrator of the
Plan. As such, it is a proper defendant on this claim.
Defendants contend that plaintiffs' claim under § 502(a)(3) is
improper, as plaintiffs seek only the recovery of benefits, and
have an adequate remedy under § 502(a)(1)(B). I agree.
In Varity Corp. v. Howe, 516 U.S. 489, 116 S.Ct. 1065, 134
L.Ed.2d 130 (1996), the Supreme Court, in determining whether
relief under § 502(a)(3) was available to the plaintiffs in that
case, analyzed § 1132 as a whole. The Court stated that "[f]our
of that section's six subsections focus upon specific areas,"
while "[t]he language of the other two subsections," one of which
is § 502(a)(3), "creates two `catchalls,' providing `appropriate
equitable relief' for `any' statutory violation." Id. at 512,
116 S.Ct. 1065. The Court reasoned that "these catchall
provisions operate as a safety net, offering appropriate
equitable relief for injuries caused by violations that § 502
does not elsewhere adequately remedy." Id. Noting that the
statute authorizes "appropriate" equitable relief, the Court
stated that it expected that "courts, in fashioning `appropriate'
equitable relief, will keep in mind the `special nature and
purpose of employee benefit plans,' and will respect the `policy
choices reflected in the inclusion of certain remedies and the
exclusion of others." Id. at 515, 116 S.Ct. 1065. Therefore,
the Court stated, "where Congress elsewhere provided adequate
relief for a beneficiary's injury, there will likely be no need
for further equitable relief, in which case such relief normally
would not be `appropriate.'" Id.
Based upon Varity, this court has previously held that where
a plaintiff sought benefits allegedly due to him under a
retirement plan, "[s]ection 1132(a)(1)(B) provide[d] him with an
appropriate remedy, and he therefore c[ould] not proceed under §
1132(a)(3) as well." Layaou, 69 F. Supp.2d 419 (W.D.N.Y. 1999).
See also Fitch v. Chase Manhattan Bank, N.A., 64 F. Supp.2d 212,
228-29 (W.D.N.Y. 1999) (interpreting Varity "to mean that
plaintiffs may not seek the same relief under
29 U.S.C. § 1132(a)(3) as they are seeking under 29 U.S.C. § 1132(a)(1)(B)")
(citing Joyce v. Curtiss-Wright Corp., 992
221 F. Supp. 259, 270-71 (W.D.N.Y. 1997), aff'd, 171 F.3d 130 (2d
Cir. 1999)); Dittman v. Dyno Nobel, Inc., No. 97-CV-1724, 1998
WL 865603 *8 (N.D.N.Y. Nov.24, 1998) (since plaintiff was seeking
benefits under the terms of a plan, Congress had "provided
adequate relief" for plaintiff pursuant to § 1132(a)(1)(B), and
further equitable relief enjoining defendants from violating the
terms of the plan was not appropriate).
In the case at bar, plaintiffs have not even offered any
reasons why they should be allowed to proceed on their claim
under § 502(a)(3). Their brief in response to this part of
defendants' motion simply argues why plaintiffs believe they are
entitled to benefits. It is clear that the relief sought here is
simply the recovery of benefits allegedly due to plaintiffs under
the Plan. Therefore, their claim under 29 U.S.C. § 1132(a)(3)
must be dismissed.
III. Breach of Contract
Plaintiffs' third cause of action asserts a claim against Akzo
and Cargill for breach of contract under New York law. Plaintiffs
allege that they are third-party beneficiaries of the purchase
agreement, and that defendants breached their contractual
obligations to plaintiffs because of Cargill's failure to provide
plaintiffs with free retiree life insurance, reduced-cost retiree
health insurance, and a severance package substantially
equivalent to Akzo's, and because of Akzo's and Cargill's failure
to provide plaintiffs with early retirement pension benefits of
comparable value comparable to what plaintiffs would have
received had they still been employed by Akzo. Defendants contend
that this claim is preempted by ERISA.
With certain exceptions not applicable here, ERISA provides
that its provisions "shall supersede any and all State laws
insofar as they may now or hereafter relate to any employee
benefit plan" covered by ERISA. State law claims relating to
employee benefit plans are therefore preempted by ERISA. Pilot
Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44, 107 S.Ct. 1549, 95
L.Ed.2d 39 (1987). The Supreme Court has described ERISA's
preemption provisions as "expansive." Id. at 45-46, 107 S.Ct.
1549. See also Romney v. Lin, 94 F.3d 74, 78 (2d Cir. 1996),
cert. denied, 522 U.S. 906, 118 S.Ct. 263, 139 L.Ed.2d 189
(1997); Smith v. Rochester Tel Bus. Mktg. Corp., 786 F. Supp. 293,
305 (W.D.N.Y. 1992) ("Congress intended ERISA `to occupy
fully the field of employee benefit plans and to establish it "as
exclusively a federal concern"'") (quoting Moore v. Metropolitan
Life Ins. Co., 856 F.2d 488, 492 (2d Cir. 1988)), aff'd,
40 F.3d 1236 (2d Cir. 1994).
The Supreme Court has stated that a "law `relates to' an
employee benefit plan, in the normal sense of the phrase, if it
has a connection with or reference to such a plan." Shaw v.
Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77
L.Ed.2d 490 (1983). Shaw set forth a two-part analysis for
determining whether a breach of contract claim is preempted by
ERISA: "(a) whether the contract claim asserted is related to an
employee benefit plan, and, if so, (b) whether there is an
exception under ERISA that precludes pre-emption of the state
law." Devlin v. Transportation Communications Int'l Union,
173 F.3d 94, 101 (2d Cir. 1999). If no exception applies, the claim
is preempted, for a "state common law action which merely amounts
to an alternative theory of recovery for conduct actionable under
ERISA is preempted." Diduck v. Kaszycki & Sons Contractors,
Inc., 974 F.2d 270, 288 (2d Cir. 1992).
In the case at bar, plaintiffs' breach of contract claim
plainly relates to an employee benefit plan, and is therefore
preempted by ERISA. First, ERISA itself states that the types of
benefits sought here are covered by employee welfare benefits
plans. See 29 U.S.C. § 1002(1) (stating that "[t]he terms
`employee welfare benefit plan' and `welfare plan' mean any plan
. . . established or . . . maintained for the purpose of
providing [inter alia,] . . . (A) medical, surgical, or
hospital care or
benefits, or benefits in the event of sickness, accident,
disability, death or unemployment . . .), and § 1002(2)(B)
(stating that "the terms `employee pension benefit plan' and
`pension plan' mean any plan . . . established or maintained" for
the purpose of "provid[ing] retirement income to employees . .
."). These are precisely the types of benefits to which
plaintiffs claim they are contractually entitled.
Plaintiffs argue that their contract claim does not relate to
an employee benefit plan because the relief sought here would not
have to come from the Plan itself. Apparently plaintiffs'
suggestion is that defendants could simply pay plaintiffs damages
out of their own corporate assets, without involving the Plan.
That argument is unpersuasive. All that plaintiffs are doing is
asserting an "alternative theory for recovery" for benefits that
they claim are due them under the Plan. Diduck, 974 F.2d at
288; see Smith v. Dunham-Bush, Inc., 959 F.2d 6, 12 (2d Cir.
1992) (rejecting plaintiff's argument that he "was merely suing
for additional benefits from the employer, rather than the plan,"
and adding that though plaintiff had "present[ed] that claim
attractively, if not sympathetically, . . . [t]o accommodate such
a claim . . . would irreparably undermine ERISA and would
seriously discourage employers from adopting such plans");
Cerasoli v. Xomed, Inc., 952 F. Supp. 152, 158 (W.D.N.Y. 1997)
(rejecting plaintiff's contention that his claim was not
preempted because he was suing his employer directly for damages,
rather than suing the plan administrator for payment of benefits;
In addition to their claim that the purchase agreement called
for them to receive various Plan benefits that were later denied
them, plaintiffs allege that the value of Cargill's "severance
package" was not comparable to Akzo's, also allegedly in
violation of the terms of the purchase agreement. It is
conceivable that this alleged deficiency was attributable at
least in part to a lack or lower level of some sorts of benefits
or payments not covered by ERISA. Plaintiffs have identified no
such items, however. The only things specifically identified by
them as not having been provided to them are the pension and
other benefits mentioned above, which are clearly part of an
employee benefit plan governed by ERISA.*fn3
Finally, I note that although ERISA does set forth certain
exceptions from its coverage, see 29 U.S.C. § 1144(b), (d),
none of them applies here. Shaw, 463 U.S. at 96, 103 S.Ct.
2890. Accordingly, plaintiffs' claim for breach of contract must
be dismissed as preempted by ERISA. Devlin, 173 F.3d at 101.
Defendant Cargill, Inc.'s motion to dismiss the complaint
(Docket Item 7) is granted, and the complaint is dismissed as to
The motion to dismiss (Docket Item 8) filed by defendants Akzo
Nobel, Inc. and Akzo Nobel Retirement Account Plan, by its
representative, Akzo Nobel Retirement Account Plan Pension
Committee ("the Akzo defendants") is granted in part and denied
in part. The first and third causes of action are dismissed in
their entirety. The second cause of action is dismissed as to
Akzo Nobel, Inc., and as to the Akzo defendants except insofar as
it asserts a claim under 29 U.S.C. § 1132(a)(1)(B) against the
Akzo Nobel Retirement Account Plan and the Akzo Nobel Retirement
Account Plan Pension Committee. In all other respects, the motion
IT IS SO ORDERED.